Client Alerts

Highlights Government's Efforts to Combat Fraud

In what has come to be an expected issuance every six months, on Friday, July 29, 2016, the Department of Health & Human Services (HHS), Centers for Medicare & Medicaid Services (CMS) released Notice of its renewal of the 6-month moratorium on new provider enrollment for Home Health Agencies (HHAs) and Part B Non-Emergency Ground Ambulance Suppliers, to be effective that same day (you can see our previous alerts on this moratorium here). In a surprising twist, however, HHS has changed the Moratorium’s reach by making the freezes state-wide, as opposed to the limited geographical areas affected in the past. New HHA enrollments are now on hold in the following states: Florida, Illinois, Michigan, and Texas.

The FCC recently issued a Public Notice (DOC-340450A1.pdf) seeking comments on a Petition for Rulemaking filed by two “public interest” advocacy groups – Public Knowledge and the Open Technology Institute at New America. The Petition requests that the FCC adopt several rules that would govern the Dedicated Short Range Communications (DSRC) service that is being deployed in support of connected car technologies and services. The Petition seeks (1) new FCC rules governing privacy and cybersecurity of DSRC services; (2) a prohibition on any services other than safety-of-life in the DSRC spectrum; and (3) a halt to any DSRC deployment until the new, proposed rules are adopted.

In a decision which may have a dramatic impact on employers utilizing the services of staffing companies or temporary agencies, the National Labor Relations Board determined in Miller & Anderson, Inc., 364 NLRB No. 19 (July 11, 2016) that a union may seek a mixed bargaining unit consisting both of temporary employees jointly employed by a “user” employer and a staffing company, together with solely employed regular employees of the user employer; and can do so even if either the user employer or the staffing company objects to the combined unit. In so finding, the Board reversed its decision in Oakwood Care Center, 343 NLRB 659 (2004), which had held that the consent of both employers was required for what was essentially deemed a multi-employer bargaining arrangement.

The National Highway Traffic Safety Administration (NHTSA) is charged by Congress with promoting safety on U.S. roads. While mandating minimum vehicle safety performance levels through federal standards was the original focus of congressional intent, monitoring vehicle-use trends for signs of potential safety defects has become a major, if not the principal, function of the agency.

INTRODUCTION

This is a joint health alert with Fortium Partners[1]. Fortium is engaged in assisting companies to solve cybersecurity and other business challenges. They are a national company with partners in many cities in the United States. Many of these partners are former CIOs.

ISSUES

In the wake of major attacks on universities, hospitals and businesses, the risk of ransomware, phishing, and other cyberattacks has never been greater. In fact, cybercrime is big business. American companies lose approximately $250 billion a year due to intellectual property theft and $114 billion directly due to cybercrime. 

Pursuant to the Patient Protection and Affordable Care Act and corresponding regulations, the Health Insurance Marketplaces (also known as the “Exchanges”) will begin to notify certain employers if an employee was determined eligible for advance premium tax credits because the employee attested that he or she was neither enrolled in employer sponsored coverage nor eligible for employer coverage that is affordable and meets the minimum value standard . The Exchanges anticipate sending notices in batches throughout 2016. The Exchanges will send notices to employers if the employee received the premium tax credit for at least one month in 2016 and if the Exchange has an address for the employer.

Section 1557 of the Affordable Care Act (ACA) and related regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability, by any health program or activity that receives federal funding or assistance from the federal Department of Health and Human Services (HHS) or that is administered by an executive agency.

IMPACT:
Health Care Providers, Insurers, TPAs

Section 1557 of the Affordable Care Act (ACA) and related regulations prohibit discrimination on the basis of race, color, national origin, sex, age, or disability, by any health program or activity that receives federal funding or assistance from the federal Department of Health and Human Services (HHS) or that is administered by an executive agency.

In our May 6 client alert, we described generally the restrictions on tax-exempt organizations that want to participate in public policy or political activities. As we noted in that alert, those restrictions are subjective and very fact-specific, and they apply differently to different types of tax-exempt organizations.

There is a growing rise in trade secret theft in the automotive industry. Fast-paced advances in automated and connected car technologies, as well as other manufacturing and technology advances, coupled with a global marketplace and interconnected supply chain makes the automotive industry ripe for trade secret theft.

The FCC is Seeking to Refresh the Record with Respect to Proposals for Sharing of the Spectrum that had been set aside for Vehicle-to-Vehicle Communications - Comments are Due July 7th

Software development companies breathed a collective sigh of relief in May of 2016.

The Federal Circuit reversed a Central District of California decision that held all patent claims to a “self-referential” database as not patent eligible under 35 U.S.C. §101. The Federal Circuit remanded the case for further proceedings by patent holder Enfish for its ADO.NET product.

We have previously issued a Health Alert on the specific issue of Telemedicine. One of the obstacles in providing telemedicine services has been reimbursement. In order to address this issue at least, in part, we have teamed with Kathy Jo Uecker*. Kathy is very knowledgeable in reimbursement and was pleased to assist in providing information on how providers can be paid for these services.

Ok. You asked for it and you got it: You implemented review based websites, customer portals, message boards, blogs, social media, chat rooms, bulletin board posts, and other applications which enable customers and users to communicate with your business and each other by posting information, comments, messages, images, etc. All you want is for everyone to be happy!!

Background

Many employers encourage employee participation in a wellness program. New final regulations were just issued that change the rules for employers offering employee wellness programs. Changes include expanded restrictions on wellness incentives, additional notice requirements, new prohibitions on employer actions, and new confidentiality requirements.

The desire by physicians and others to leverage their services and those of their staff as well as the consumer demand for greater access to have information about their health is leading the push for patient portals. This push is coming from many sources: patients, health care providers, insurers and regulators. Patient portals include any type of secure online website that provides access to health information or health care professionals from anywhere using an Internet connection. Patient portals can provide any number of benefits including by example, better patient-provider communication, improved workflow, benefits and coverage, making payments, a customized patient engagement and experience, self-service care, remote management of care, behavior changing preventative care and chronic care management, improved quality, meeting various “meaningful use” incentive requirements, research, coordination of care across providers and many other benefits.

On May 18, 2016, the Department of Labor issued its final regulation revising the overtime pay exemption for white-collar employees. It issued the proposed rule in July 2015 and, since September 2015, had reviewed over 270,000 comments from businesses, labor unions, and other members of the public about the proposed regulation.

This morning, in a short unsigned opinion read from the bench by Chief Justice John Roberts, the U.S. Supreme Court vacated and remanded seven Affordable Care Act (ACA) contraceptive mandate cases. Zubik v. Burwell, Case No.14-1418 et al. Bringing its total ACA mandate remands to 13, the Court also issued orders today simultaneously vacating and remanding six additional ACA contraceptive mandate cases to their respective federal Courts of Appeal.

Nearly two weeks ago Butzel Long was one of the first law firms in the nation to announce the passage by both chambers of Congress of the Defend Trade Secrets Act of 2016 (the “DTSA”). The DTSA passed with overwhelming support in both houses. Yesterday, President Obama signed the DTSA into law, and the Act is now effective. Below is a recap of what is new and what every company should be looking to do in light of this new law. Specifically, there are new provisions that must be written into every non-compete or other restrictive covenant signed by any employees. Butzel Long can help keep your company up to date and in conformance, and in doing so keep your assets protected.

In an election year, it’s worth nonprofit organizations reviewing the rules about public policy, lobbying, and political activities. Tax exempt nonprofit organizations must be careful about the types of public and political activities they undertake, but a nonprofit organization doesn’t have to give up the ability to take positions on public issues or to take action to influence public policy merely because of its exempt status. Federal tax limits on the political activities of tax-exempt organizations are, in fact, often narrower than many people lawyers think. Tax-exempt organizations have the right to engage in public debate and make their positions on important issues known, and even 501(c)(3) charities, which are the most heavily regulated, may engage in some political activities that further their tax-exempt, charitable purposes.